Miss Yvonne M Hall

Preliminary matters:

Service

1. The Registrant was not present at the hearing and was not represented.

2. The Panel was satisfied that notice of the review hearing had been sent to the Registrant by a letter dated 02 March 2021. The notice was sent to her registered address by first class post and also by email, giving notice of the hearing date and the venue.

3. The Panel had sight of a proof of posting in respect of the letter sent by post, dated 02 March 2021. A notification of delivery failure of the email version of the notice was received.

4. The Panel was satisfied that there had been proper service of the notice of the review hearing by sending of the notice of hearing by post, in accordance with the Conduct and Competence (Procedure) Rules 2003 (“the Rules”).

Decision to proceed in the Registrant’s absence

5. Ms Bwoma, on behalf of the HCPC, submitted that it was fair and in the public interest that this mandatory review of the current Suspension Order should be reviewed today.

6. Ms Bwoma informed the Panel that there had been no contact from the Registrant in response to the notification of the review hearing. The Registrant did not attend the initial hearing in April 2019 or the first review hearing on 01 May 2020. She has not engaged with the HCPC since before the substantive hearing. Ms Bwoma submitted that the Registrant had voluntarily absented herself and an adjournment would serve no useful purpose.

7. The Panel considered the submissions on behalf of the HCPC and accepted the advice of the Legal Assessor. The Panel was referred to the HCPTS Practice Note of September 2018, Proceeding in Absence, which sets out guidance from the cases of R v Jones (Anthony) [2004] 1 AC 1HL and GMC v Adeogba and GMC v Visvardis [2016] EWCA Civ 162. Applying that guidance, the Panel was careful to remember that its discretion to proceed in absence is not unfettered and must be exercised with the utmost caution and with the fairness of the hearing at the forefront of its mind.

8. The Panel noted information presented by the HCPC today in the form of a file attendance note dated 1 April 2019, shortly before the substantive hearing. This recorded a telephone conversation between an officer of the HCPC and the Registrant. According to the note, the Registrant indicated in this conversation that she did not intend to return to practice. The Panel was informed by Ms Bwoma that the Registrant has not communicated with the HCPC since that conversation. The Registrant did not attend either the substantive hearing or the first review hearing.

9. The Registrant has not contacted the HCPC to seek an adjournment of today’s hearing for any reason. In all the circumstances, the Panel concluded that she has disengaged from the HCPC process. The Panel concluded that an adjournment of today’s hearing was unlikely to secure the Registrant’s attendance on a future date. It appeared that she had voluntarily absented herself and waived her right to attend.

10. The Panel was mindful that this was a mandatory review of the current order of suspension. The current order will expire on 14 May 2021 and if the order is not reviewed before that date, the Registrant will be able to return to unrestricted practice. The Panel concluded that in these circumstances it is in the public interest and in the interest of the Registrant that the current order be reviewed in a timely manner. The Panel was satisfied it was fair and in the public interest to proceed with the review hearing today.

Application for private hearing

11. Ms Bwoma applied under Rule 10(1)(a) of the Rules for part of the hearing to take place in private, as it would be necessary to refer to issues concerning the Registrant’s health and private life.

12. The Panel took advice from the Legal Assessor. The Panel was mindful of the important default position under the Rules that HCPC proceedings take place in public, in the interests of transparency and openness. However, it was satisfied that in this case there were grounds to depart from that position so that those parts of the hearing concerning the Registrant’s health and private life should remain private. The remainder of the hearing would take place in public.

The decision of the Panel at the substantive hearing on 12-16 April 2019.

13. The Registrant was a Chief Biomedical Scientist (BMS) at the Wirral Teaching Hospitals Foundation Trust (“the Trust”). Her role in 2017 had been as a Quality Manager.

14. It was alleged that, whilst at work on 9 November 2017, the Registrant’s colleague JG heard the Registrant unscrew a metal lid and saw the Registrant pouring liquid into a tea cup from a bottle covered by a plastic bag and on two occasions drinking from the cup. When the Registrant left the room JG checked the plastic bag and found an almost empty vodka bottle. JG reported the incident to management.

15. AQ, an Improvement Manager with the Trust and a registered Nurse with the NMC, met the Registrant on 10 November 2017 to discuss the incident. AQ had reported that the Registrant smelt of alcohol but the Registrant had claimed she had consumed alcohol the previous night. The Registrant had admitted to bringing alcohol to work on 9 November 2017 to consume later at home. She had initially denied drinking alcohol at work.

16. AQ told the original panel at the substantive hearing that when the Registrant entered the room for the interview on 10 November 2017 there was a strong smell of alcohol. AQ said that when the Registrant spoke to AQ the smell of alcohol was also noticeable. AQ said the Registrant’s eyes were glazed, and that she was unkempt in appearance and was shaking. However, she spoke steadily and her speech was not slurred and AQ said the Registrant was probably nervous.

17. AQ also told the original panel that the Registrant had admitted at that time that she had brought alcohol into the Trust premises. AQ said she was concerned as to why the Registrant had not left the alcohol in the car if it was, as the Registrant claimed, for consumption that evening. AQ told the original panel that on that day she had decided to suspend the Registrant after a lengthy discussion with her about the stresses in the Registrant’s home life. The Registrant was shortly thereafter referred to Occupational Health by AQ.

18. On 10 November 2017 a further two plastic bottles of clear liquid had been found on the Registrant’s desk. AQ smelt one of the bottles and confirmed that she could smell alcohol. At the same interview with AQ that day, the Registrant denied the existence of these bottles or that she had consumed alcohol at work. AQ suspended the Registrant from work on 10 November 2017.

19. AQ told the original panel that she had been concerned about the Registrant, who was a quality assurance manager and had been concerned to hear that the Registrant had driven in to work that morning and intended to drive home, given the smell of alcohol from her. AQ said that she was also concerned about the impact of the Registrant’s behaviour on colleagues who had reported the matter. In addition, AQ told the original panel that she had spoken to a colleague, the Registrant’s previous manager. He had told her that the Registrant had previously had alcohol related issue and concerns had been raised about her behaviour in the work place at that time. AQ had not been clear when those concerns were raised, but it was at least a year before this incident. AQ said it had not been Trust policy to breathalyse staff.

20. HW, the Allied Health Professionals Manager at the Trust, thereafter conducted an investigation in to the incidents for the Trust. On 30November 2017 the Registrant was interviewed by HW. The Registrant admitted bringing alcohol into work on 9 November 2017 and having consumed two alcoholic drinks at her desk on 9 November 2017. HW told the original panel that the Registrant had denied drinking alcohol at work on the 10 November 2017 or having alcohol in the two plastic bottles at her desk. HW said that although the Registrant had been willing to say she had consumed alcohol on 9 November 2017, she had not been willing to say how much and she appeared to understand that what she had done was wrong.

21. HW referred the original panel to the Trust policy on Substance Misuse and said it was generally known at the Trust that one must not consume alcohol at work or be under the influence of alcohol whilst at work. Subsequent to that interview the Registrant acknowledged that she may have had alcohol in her bag on 10 November 2017.

22. The original panel found the facts proved and found that they amounted misconduct; consuming alcohol at work and being under the influence of alcohol at work put patients at risk, even indirectly. It was a serious breach of the standards of conduct and behaviour expected of a Biomedical Scientist and brought the profession into disrepute. The original panel found that the Registrant’s behaviour fell far below what would be proper in the circumstances and would be considered deplorable by fellow professionals.

23. In relation to Impairment, on the personal component of impairment of fitness to practise, the original panel determined that it had very little information from the Registrant to demonstrate remorse, insight or remediation as it had no current information from her. The original panel considered that the conduct found proved was remediable, but that there was no evidence that the Registrant had taken steps to do so and there was no evidence that the Registrant was keeping her skills and practice up to date. There had been no engagement by the Registrant with the HCPC and she had not provided any evidence of her then-current circumstances to the Panel.

24. With respect to insight, the original Panel noted that HW had said the Registrant, at the time, clearly knew what she had done was wrong and HW said she could “tell she [the Registrant] knew it was wrong as she was willing to say she had had an alcoholic drink at work but she was less willing to say how much”. AQ said that on 10 November 2017 she and the Registrant had a “very open and common sense” conversation but the Registrant had denied drinking.

25. The original panel determined that the Registrant did appear, at the time, to accept she had underlying issues, but she was then seeking to address them. It noted that she had expressed some remorse for her actions. However, the original panel had no further evidence of the Registrant’s developing or current insight, and it had no evidence of any remediation of her practice. The original panel knew nothing of the Registrant’s then-current circumstances, as there had been no engagement by her with the HCPC. The original panel did not know the outcome of the Registrant’s steps in 2017 to remedy her practice and it had determined that it could attach only very limited weight to those “green shoots” of the Registrant’s insight and her steps to remedy her practice at that time.

26. The lack of any current evidence of insight and remediation led the original panel to conclude that there was risk of repetition and to determine that there was a potential risk to patient safety. The original panel concluded on the private component of impairment that the Registrant’s fitness to practice was currently impaired.

27. With respect to the public component of Impairment, the original panel was mindful of the critical public interest aspects. It had considered the need to protect service users, to declare and uphold proper standards of behaviour and to maintain confidence in the profession. The panel found that the public would have been very concerned that a Biomedical Scientist, including in the role of this Registrant, with responsibilities to ensure quality and safety, had been consuming alcohol at work.

28. The panel determined that public confidence would have been seriously undermined were it not to have found that the Registrant’s fitness to practise was then currently impaired. It determined that, in order to maintain public confidence in the profession, and in the Regulator, and to uphold and declare proper standards, a finding of impairment was required on public interest grounds.

29. In relation to sanction, the original panel identified the following aggravating features:

a. The premeditation involved in bringing and concealing alcohol in the work place on two consecutive days;
b. Limited insight and non-engagement with the HCPC;
c. The potential for harm to patients and the public.

30. The original panel identified the following mitigating features:

a. Difficult personal circumstances;
b. Previous good character and no previous regulatory concerns.

31. The original panel decided that taking no further action and the sanction of a Caution Order would not reflect the seriousness of the allegation proved and the finding of a risk of repetition. The findings were not limited, minor or isolated. There was very limited evidence of remedial action and limited evidence of insight. Further, such orders would not have been adequate or proportionate given the wider public interest in upholding proper standards and maintaining confidence in the profession and the regulatory process. The original panel found that neither order was appropriate or proportionate in the circumstances of this case.

32. The original panel next considered imposing a Conditions of Practice Order. It determined that the allegation found proved was serious. It considered paragraph 33 of the Indicative Sanctions Policy (ISP) of the HCPC. It required panels to be satisfied that the Registrant was committed to resolving the issues that gave rise to the Allegation and was able to resolve them. The original panel knew nothing of the Registrant’ then-current circumstances and given the complete lack of engagement by the Registrant, there was no evidence that the Registrant was either willing or able to comply with Conditions. In any event, the original panel concluded that its findings were not amenable to the imposition of realistic, verifiable and workable Conditions of Practice at that stage. Therefore, the original panel determined that a Conditions of Practice Order was not appropriate or proportionate and would not address the risk identified or satisfy the public interest.

33. The original Panel next considered a Suspension Order. It had found a serious allegation proved that gave rise to a risk to patient safety. There was no engagement, limited insight and very limited remediation. It determined that a Suspension Order would protect the public and uphold proper standards. It would also have a deterrent effect on other professionals.

34. The original panel did not find that it was able to conclude that the Registrant was unable to resolve the behaviour which led to the allegations. It was mindful of the terms of paragraph 41, 42 and 43 of the ISP which indicated that a Suspension Order may be appropriate where a lesser sanction would undermine public confidence and be unlikely to provide the required level of public protection. The original panel decided that the nature and gravity of the Allegation was such that to maintain confidence, protect the public and provide a deterrent effect, a Suspension Order for a period of 12 months was the appropriate and proportionate sanction.

35. The original panel considered that a panel reviewing the Suspension Order would be assisted by the Registrant providing the following: -

i. The Registrant’s engagement;
ii. Up to date evidence from any treating health professionals; regarding her wellbeing and fitness for work;
iii. Any evidence of remediation;
iv. Any evidence of keeping her knowledge and skills up to date;
v. Any relevant testimonials from paid or unpaid work which she may wish to place before the panel,

36. Finally, the original panel considered that a Striking Off Order would not have been proportionate at that stage, as a Suspension Order sufficiently and proportionately protected the public and the wider public interest. Further, the nature and gravity of the Allegation, although serious, were not so serious as to call for a Striking Off Order to be made.

The Decision of the first Review Panel on 01 May 2020:

37. The Registrant did not engage with the HCPC and did not attend the first review hearing. She did not submit any written documentation or respond to the recommendations of the original panel.

38. The first review panel noted that there has been no engagement by the Registrant during the HCPC proceedings despite her assertions to the Trust on 30 November 2017, that she was seeking positive help and despite the suggestions of the panel for any Review hearing. The review panel expressed disappointment, as it seemed that this was a remediable case and once any remediation generally might have been initiated, particularly regarding the previous Panel’s suggestions, there could have been a chance for the Registrant to demonstrate the potential for her to return to her chosen profession eventually, without impairment. In the Panel’s judgement, the Registrant’s failure to engage with the HCPC and with this process, which otherwise would have been extremely useful, was regrettable.

39. With no further information before it, the first review panel could only conclude that the Registrant remained currently impaired. Alcohol consumption, whilst on duty, by a Biomedical Scientist of the seniority of the Registrant at the time, was serious, as it puts the health, safety and well-being of the public at risk of harm and also undermines the confidence that the public is entitled to have in the profession and in the regulatory process.

40. The first review panel concluded that the already-identified lack of insight and remediation continued, with the commensurate risk of repetition. This, in turn lead to the public still being at risk of harm from the Registrant where she be declared to be fit to practise. The Panel also determined that if an informed member of the public were to learn that this Registrant was to be declared fit to practise, they would be shocked and this would severely undermine the public’s confidence in the profession and in this regulatory process.

41. The first review panel concluded that the Registrant remained currently impaired on the grounds of public protection and in the wider public interest.

42. In relation to sanction, the first review panel identified the following aggravating factors:

⦁ A continuing failure to engage with the HCPC or this process, and since late 2017;

⦁ No significant evidence of: any intervening, and current, insight, remorse or regret, since November 2017, a period of two and a half years; no remediation; no update of the Registrant’s health condition; no information of how the Registrant is keeping up to date on her skills and knowledge; no testimonials or references.

The panel identified the following mitigating factors:

⦁ Some, relatively small, attempts at insight in 2017, when the Registrant acknowledged in interview, that she understood that what she had done was wrong;

⦁ A positive, and repeated, verbal assertion by the Registrant to the Trust, in 2017 that she intended to deal with her health issues;

⦁ An inference that, in 2017, the Registrant had wanted to return to practice as a senior Biomedical Scientist;

⦁ An indication that the Registrant had a number of severe personal problems that might have affected her judgement with respect to her alcohol consumption whilst on duty;

⦁ The matters found proved did not relate to the Registrant’s clinical work;

⦁ No reported regulatory issues before these events.

43. The first review panel considered the available sanctions in ascending order, reaching the conclusion that an extension of the existing Suspension Order would be the fairest and most proportionate way to address the issues raised by this case. The misconduct found proved related to a serious allegation that gave rise to a risk to patient safety. There continued to be no engagement, no significant insight and remediation. The Panel also noted the HCPC’s sanction policy, which indicated that a Suspension Order may be appropriate where a lesser sanction would undermine public confidence and be unlikely to provide the required level of public protection.

44. The first review panel took into consideration that the Registrant had expressed to the Trust a desire to achieve good health in the future, but that was in November 2017, two and a half years ago. The review panel observed that this was also entwined with an inference that, when she might achieve good health, this might enable her to return to practice as a Biomedical Scientist. Nothing had been heard from her since. However, the review panel was conscious that there have been many occasions when Registrants with ill health recover, or partially recover, which gives them the motivation and confidence to want to remediate fully and return to practice. The review panel noted it did not have that information from the Registrant because she had continued not to engage with the HCPC and with this process.

45. Thus, with that in mind, the first review panel concluded that the Registrant should be given another chance to engage and the extension of the existing Suspension Order would enable this to take place.

46. The first review panel considered that to impose a Striking Off Order might be premature, and unduly harsh, punitive and disproportionate, if, as it hoped, the Registrant could bring herself to engage with the HCPC and with this process, within the next period of suspension. The first review panel took into account that the Registrant had achieved a relatively senior status as a Biomedical Scientist with no past history of regulatory issues against her. It determined that, if fully remediated, this Registrant could achieve a safe and effective return to practice that could benefit the wider community.

47. The review panel concluded that another 12-month period would give the Registrant sufficient time to engage and take her case forward in a positive way, if she so chose. Whether or not she did so would be a matter for her. The review panel therefore determined to extend the Suspension Order for a further period of 12 months.

48. The review panel stated that a future panel might find the following information of assistance at the next review hearing:

i. The Registrant’s engagement;
ii. Up to date evidence from any treating health professionals regarding her wellbeing and fitness for work;
iii. Any evidence of remediation, including, for example, a written statement addressing how she feels in relation to her misconduct and her fitness to practise, any future employment as a Biomedical Scientist, her health condition (past and present), her personal circumstances, and anything else she wishes to express;
iv. Any evidence of keeping her knowledge and skills up to date;
v. Any relevant testimonials from paid or unpaid work which she may wish to place before the next Review Panel.

Submissions of the HCPC at the second review hearing on 1 April 2021

49. Ms Bwoma referred to two documents which had not been available to previous panels in this matter. The first was the file attendance note dated 1 April 2019 relating to a telephone conversation between an officer of the HCPC and the Registrant. According to the note, the Registrant indicated in this conversation that she did not intend to return to practice.

50. Ms Bwoma submitted that the Registrant’s fitness to practise remains currently impaired in respect of both the personal and public components. There had been no change in circumstances and the Registrant had provided no information for today’s hearing. Ms Bwoma reminded the Panel that the persuasive burden was on the Registrant as per the case of Abrahaem v GMC [2008] EWHC 183 (Admin).

51. Ms Bwoma submitted the Registrant had not demonstrated any insight into her past misconduct. The original panel had stated that the conduct was capable of being remedied, but there was no indication of any attempt to do so. Given the lack of engagement by the Registrant, Ms Bwoma stated that the HCPC’s position was that a further period of suspension would serve no useful purpose and the Panel could properly impose a Striking Off Order. She referred the Panel to the guidance in the HCPC Sanctions Policy. However, Ms Bwoma said this was ultimately a matter for the Panel’s discretion.

Panel Decision

52. The Panel took into account the submissions of Ms Bwoma and considered the evidence presented. The Panel accepted the advice of the Legal Assessor. The Panel was referred to the HCPTS Practice Notes, Impairment of Fitness to Practise (December 2019) and Reviews of Article 30 Sanction Orders (June 2018), and to the HCPC Sanctions Policy (March 2019).

53. The Legal Assessor reminded the Panel that it should reach its own decision having conducted a comprehensive review of the current order. The Panel should consider whether the Registrant’s fitness to practise remained currently impaired in respect of the personal and/or public components of current impairment.

54. The Panel was reminded of its powers at a mandatory review under Article 30(1) of the Health Professions Order, if current impairment were found. In relation to sanction, the Panel should adopt a proportionate approach and impose the least restrictive sanction which in its view would appropriately protect the public and the public interest.

55. The Panel conducted a comprehensive review of the current Order of Suspension. The Panel first addressed the factors relevant to its decision set out in the Practice Note on Article 30 Reviews, being mindful that the key issue is what has changed since the last review hearing.

56. The Registrant has not attended the review hearing today. She has not provided any submissions or evidence regarding this review.

57. The Panel was informed that the Registrant has not been in contact with the HCPC since 1 April 2019. She did not attend the previous review hearing on 01 May 2020, or the original hearing. The Registrant has not engaged with the HCPC proceedings. This Panel had new information (the attendance note of 1 April 2019 and the letter of the same date), not available to the previous panels, that the Registrant then stated that she had no intention of returning to her profession.

58. The Panel today has before it no further information at all regarding the Registrant’s current circumstances.

59. The Panel noted, however, that there was no information suggesting that any further fitness to practise issues had arisen and that there was nothing to suggest that the Registrant had not complied with the Suspension Order.

60. The Panel was mindful of the approach of the review panel on 1 May 2020, which sought to encourage the Registrant to engage with the HCPC process if she wished to re-establish her fitness to practise and return to her profession. Both panels which have previously considered the Registrant’s case have suggested information which she could provide for reviewing panels. Unfortunately, the Registrant has not taken up this advice and this Panel has no up to date information before it.

61. The Panel considered whether the Registrants’ fitness to practise is currently impaired. The Panel applied the guidance set out in the HCPTS Practice Note on Impairment of Fitness to Practise.

62. In respect of the personal component of impairment, this Panel noted and
agreed with the observations of the previous panels. The circumstances of the original finding of impairment on the personal component remain unchanged, other than in relation to the passage of time. The Registrant has now been suspended from practice for very nearly two years. In the complete absence of any information indicating that the Registrant has addressed the issues which led to the original finding of impairment, has reflected on her actions, has gained insight or has sought to keep her professional skills up to date, the Panel must conclude that that there remains a risk of repetition and thus a potential risk to patient safety.

63. The Panel therefore found the Registrant’s current fitness to practise to be impaired in respect of the personal component of impairment.

64. The Panel considered the public component of current impairment. Again, the basis of the original finding of impairment in respect of the public component remains unaltered. This Panel agreed that the public would have been very concerned that a Biomedical Scientist, including in the role of this Registrant, with responsibilities to ensure quality and safety, had been consuming alcohol at work. The Panel is of the view that the confidence of members of the public in possession of the information available to this Panel would be undermined if no finding of current impairment were made.

65. In the circumstances, the Panel was satisfied that the Registrant’s fitness to practise is currently impaired in respect of the public component of impairment.

66. In considering the appropriate order, the Panel considered that it would not be appropriate to impose no order or a Caution Order because the public would not thereby be protected and the wider public interest would not be addressed.

67. The Panel concluded that a Conditions of Practice Order would not be appropriate or workable, as the Registrant has not engaged with the HCPC process or made any attempt to remedy the past misconduct. The Panel can have no confidence that she either wishes to or would comply with any conditions. Given the passage of time, it is also highly unlikely that practical or workable conditions could be formulated. The Panel does not consider that conditions of practice would appropriately protect the public or maintain public confidence in the profession or the regulator in this case.

68. The Panel considered carefully whether a further period of suspension would be appropriate and adequate. It was mindful that on the expiry of the current Order, the Registrant will have been the subject of a suspension order for a period of two years. The Panel observed that every opportunity has been given to the Registrant to engage with the HCPC process, but she appears to be unwilling to do so and has effectively disengaged from the process. Given the history of complete lack of engagement described above, the Panel is not satisfied that a further period of suspension will serve any useful purpose. It can have no confidence at this point that the Registrant has any commitment to achieving current fitness to practise.

69. The Panel was mindful that striking off is the most serious sanction it can impose and gave the matter very careful consideration. However, in the circumstances, it concluded that the appropriate and proportionate sanction which will protect the public and maintain public confidence in the profession in this case is a Striking Off Order.

Order: The Registrar is directed to strike off the name of Miss Yvonne M Hall from the Register.

The order imposed will apply from the expiry of the current order on 14 May 2021.

Right of Appeal:

You may appeal to the High Court in England and Wales against the Panel’s decision and the order it has made against you.

Under Articles 30(10) and 38 of the Health and Social Work Professions Order 2001, any appeal must be made to the court not more than 28 days after the date when this notice is served on you.

History of Hearings for Miss Yvonne M Hall